[2023] KEHC 26108 (KLR)

ENK v JNK (Matrimonial Cause 11 of 2007) [2023] KEHC 26108 (KLR) (Family) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26108 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause 11 of 2007

MA Odero, J

December 1, 2023

Between

ENK

Applicant

and

JNK

Respondent

Ruling

1. Before this Court for determination is the Notice of Motion dated 18th December 2022 by which the Applicant J N K seeks the following orders:-“1. Spent.2. Spent.3. That this Honourable court be pleased to order that the Deputy Registrar supplies to the Respondent proceedings in this suit applied for on 12th October 2015 within 14 days.4. Spent5. That this Honourable court be pleased to grant the Respondent a stay of execution of the orders made herein on 27th October 2022 pending the hearing and determination of the Court of Appeal applications Nos. Appeal Civil Application Nos 199 and 200 of 2017 John Njenga Kimemia -vs- Elizabeth Njeri Kimemia6. That Costs of this application be provided for.

2. The application which was premised upon article 48 of the Constitution, section 3A of the Civil Procedure Act and order 42 of the Civil Procedure Rules and orders 51 rules 1 to 3 of the Civil Procedure Rules and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent E N K opposed the application through the Replying Affidavit dated 17th March 2023.

4. The matter was canvassed by way of written submissions. the Applicant filed the written submissions dated 14th June 2023. The Respondent did not file any written submissions.

5. The Applicant and the Respondent herein got married to each other on 4th October 1975. Later following a petition filed by the Applicant in the Magistrates Court their union was dissolved.

6. The Applicant then filed in the High Court an Originating Summons dated 14th March 2007.

7. In her Originating Summons the Applicant sought a declaration that the properties which she had listed were jointly owned having been acquired by the couple during the subsistence of their marriage.

8. On 2nd October, 2015 Hon. Justice William Musyoka made the following orders:-“a)I declare that LR No. 76/356, LR No. 494, LR No. 76/348, Nyandarua/Karati/1516, LR No. 360/292 Nyandarua, Karangatha and the land at Mugumo Nyakinyua were acquired by the Respondent during the marriage and although same is registered in the name of the Respondent the same is so held or registered in trust of the Applicant;b)I declare that the said assets are to be shared between the Applicant and the Respondent in the ration 50:50;c)The parties to agree and share the said assets in the proportions decreed above in the next six months, in default of which the same shall be sold and the net proceeds of the sale shared in the decreed ratios between the Applicant and the Respondent; andd)The Applicant shall have the cost of the application.”

9. Being aggrieved by that decision the Applicant sought and obtained leave to appeal against the judgement. He was granted 30 days stay of Execution on 12th May 2017. However, the appeal was not filed. Instead the Respondent filed another application dated 27th January 2022 seeking to review the judgement of 2nd October 2015 and proposing a new mode of distribution of the matrimonial property. The basis of this application for review was that the Respondent had been unco-operative and had transferred some of the properties into his own name.

10. The application was heard inter parties and vide a ruling delivered by Hon. Justice Muchelule (as he then was) on 27th October 2022, the court rejected the application for review. The court directed that the judgement of 2nd October 2015 was binding and directed that the Respondent surrender all Title Document for the properties in question to the Hon. Deputy Registrar. The court made the following orders:-“a)That the Respondent shall surrender within 21 days all the title documents to the Deputy Registrar of the court, who shall enable sale of the properties as ordered.b)If the title documents are not surrendered as ordered, the respective land registrar shall deem them to be lost and shall deal accordingly.c)The Deputy Registrar shall execute any and all documents relevant to enable sale.d)Until there has been full execution, the Respondent is restrained from selling and leasing out the properties.”

11. It was further ordered that if the documents were not surrendered the same would be deemed as lost and the matter dealt with accordingly.

12. The Applicant then filed this application seeking stay of the orders made on 27th October 2022.

13. The Respondent vehemently opposed the application for stay.

Analysis and Determination 14. Order 42 rule 6(2) of the Civil Procedure Rules provides the guiding principles which one must satisfy before the court can grant order of stay of execution as follows:-“No order for stay of execution shall be made under sub-rule1. Unless-a.The court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay;andb.Such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the Applicant”.

15. I have carefully considered the application before this court the reply filed thereto as well as the written submissions filed by the Applicant.

16. The impugned ruling was delivered on 27th October, 2022. The current application for stay was made on December 2022 – a period of two (2) months after the ruling was delivered. In my view this does not amount to an inordinate delay.

17. It is clear to this court that the parties herein have engaged in endless rounds of litigation over issues which the courts have already determined. The Applicant was given 21 days to file his appeal. He has failed to comply.

18. I find no merit in this application for stay. The orders made on October 27, 2022 are valid and binding on the parties. The application is dismissed in its entirety costs are awarded to the respondent.

DATED IN NAIROBI THIS 1ST DAY OF DECEMBER, 2023. …………………………………MAUREEN A. ODEROJUDGE